EPA coal issues

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This article is part of the Coal Issues portal on SourceWatch, a project of Global Energy Monitor and the Center for Media and Democracy. See here for help on adding material to CoalSwarm.

EPA coal issues is a subsection of the main SourceWatch article Environmental Protection Agency.

Coal waste regulation

Coal waste dumps contain billions of gallons of fly ash and other coal waste containing toxic heavy metals, which the EPA considers a threat to water supplies and human health. However, they are not subject to federal regulation, and there is little monitoring of their impacts on the local environment.[1]

The EPA reclassified fly ash from waste to a reusable material in the 1980s, and the agency exempted ash from Resource Conservation and Recovery Act (RCRA) regulations for hazardous waste beginning in 1993. Coal ash has been exempt from federal regulation since October 1980, with the inception of the "Bevill Exclusion" to RCRA, section 3001(b)(3)(A)(ii). Bevill excludes from RCRA hazardous waste regulations the solid waste that results "from the extraction, beneficiation, and processing of ores and minerals." The exclusion held despite pending completion of a study and a Report to Congress, as required by federal law, and pending a determination by the EPA Administrator either to promulgate regulations under Subtitle C or to declare such regulations unwarranted.[2]

In 1993 and 2000, EPA published regulatory determinations stating that coal ash waste does not warrant regulation under RCRA Subtitle C, which pertains to hazardous wastes, and should remain excluded from the definition of hazardous waste. In 2000, EPA determined that instead RCRA subtitle D regulating non-hazardous waste were applicable for coal combustion wastes, specifically those disposed in surface impoundments, landfills, and as fill in surface or underground mines. EPA further determined that beneficial uses of these wastes, other than for minefilling, pose no significant risk and no additional national regulations are needed.[2]

In 2001, the EPA said it wanted to set a national standard for ponds or landfills used for the disposal of coal waste. However, the agency has yet to act, and coal ash ponds are currently subject to less regulation than landfills accepting household trash, despite the tens of thousands of pounds of toxic heavy metals stored in ash ponds across the U.S. State regulations vary, but most ash ponds are unlined and unmonitored. In January 2009, Sue Sturgis of the Institute for Southern Studies looked into political contributions by the electrical utilities industry to the members of the Senate Environment and Public Works Committee. According to data Sturgis gathered from the Center for Responsive Politics' OpenSecrets.org website, members of the Senate committee accepted a total of $1,079,503 from the electric utilities industry in the 2008 elections.[3]

2007 EPA Report

On July 9, 2007, EPA's Office of Solid Waste released a report titled "Coal Combustion Damage Case Assessments" documenting 24 cases of proven environmental damage and 43 cases of potential damage caused by the current coal ash disposal practices nationwide.

Sue Sturgis of the Institute for Southern Studies summed up some of the proven coal-ash damage cases documented in EPA's 2007 assessment:[4]

  • In 2002, a sinkhole developed in the coal ash pond at Southern Company's Georgia Power's Bowen Steam Plant near Cartersville, Ga. Eventually spreading four acres wide and 30 feet deep, the sinkhole led to the spill of an estimated 2.25 million gallons of a coal ash and water mixture into the nearby Euharlee Creek.
  • Runoff from a fly ash pond at Duke Energy's Belews Creek Steam Station in North Carolina contaminated nearby Belews Lake, which experts have called "one of the most extensive and prolonged cases of selenium poisoning of freshwater fish in the United States."
  • At South Carolina Electric & Gas's Canadys Station along the Edisto River south of St. George, S.C., arsenic consistently has been found in monitoring wells at levels about drinking water standards, while nickel has also been detected on occasion above state standards. Both of those metals are known to cause cancer in humans.
  • Residential wells near a coal ash disposal site for Virginia Power's Yorktown Power Station, now owned by Dominion, were found to be contaminated with selenium and vanadium, with selenium levels exceeding drinking water standards. Further investigation found heavy metals contamination in nearby Chisman Creek and its tributaries, with elevated levels of known carcinogens including arsenic, beryllium and chromium.

EPA considers regulating coal ash

In May 2009, an EPA representative announced at an energy industry conference that the agency is preparing regulations on how to handle ash from coal-fired power plants. Matt Hale, the EPA official, said coal ash may be reclassified as hazardous waste. Although industry officials were vocal with objections, saying such a change would greatly increase disposal costs, Hale indicated that EPA hoped to have a proposal for national regulations by the end of the year. "The catastrophe at TVA changed the discussion and focused the discussion," he said.[5]

Regulations delayed

On December 17, 2009, EPA announced it was postponing its findings on coal ash regulations. A final decision had been expected before the end of the year. EPA attributed the delay to "the complexity of the analysis the agency is currently finishing," but said the delay would only last "a short period."[6] Earlier, in October of 2009 the EPA sent the White House a Notice of Proposed Rulemaking for Toxic Coal Ash. President Obama's choice as the head of the White House Office of Management and Budget, Cass Sunstein, oversees such policies but as of March 2010 has refused to act on the EPA's plea. Sunstein has come under scrutiny for allowing his office to meet with coal industry representatives more than 20 times since October 2010. All such meetings took place behind closed doors and were not open to the public. An anti-Sunstein website was launched in response in an attempt to force Sunstein and the White House to act on the EPA's proposed rule.[7]

Office of Inspector General Investigates EPA's 'Partnership' with Coal Industry

On November 2, 2009 the EPA Office of Inspector General (OIG) announced in a report that a formal investigation into the EPA's "partnership" with the coal industry to market coal ash reuse in consumer, agricultural and industrial products was underway. The report also criticized the EPA for not releasing a report about cancer risks associated to the exposure of coal ash until March of 2009, a full seven years after the study was completed. The OIG investigation is a result of CBS's "60 Minutes" piece on coal ash in which EPA Administrator Lisa Jackson admitted that her agency had not produced any studies indicating that the re-use of coal ash was safe.[8]

Western Governors Say States Should Regulate Coal Ash

On March 8, 2010 governors from the Western Governor's Association made a statement that the Obama administration should leave coal ash regulation to the states and resist the EPA's effort to reclassify coal ash as a hazardous material. Montana Gov. Brian Schweitzer, the pro-coal chairman of the governor's group, says the EPA's move to regulate coal ash would undercut what he described as "effective regulation by Western states." The governors state that the EPA's reclassification would prevent coal ash from being used in industrial practices like surface pavement. Utah Gov. Gary Herbert says coal-fired electric generation in the West would also be hurt, which would cost ratepayers more money. Gov. Gary Herbert of Utah states that coal-fired electric generation in his state and others would also be hurt and would cost ratepayers more money.[9]

EPA Proposes Competing Approaches To Regulate Coal-Ash Waste

Coal Ash Contamination in New Mexico.

On May 4, 2010 the U.S. EPA announced two competing proposals to regulate coal-ash waste produced by coal-fired power plants. Both options fall under the Resource Conservation and Recovery Act (RCRA). Under the first proposal, EPA would list coal ash and coal waste residuals as "special wastes," or hazardous wastes, subject to regulation under subtitle C of RCRA, when destined for disposal in landfills or surface impoundments. Treatment, storage, and disposal facilities (TSDFs) manage hazardous wastes under RCRA Subtitle C, and generally must have a permit in order to operate, with land disposal restrictions. Under the second proposal, EPA would regulate coal ash under subtitle D of RCRA, the section for non-hazardous wastes. Under section D, no permit is required, monitoring is done by citizens, not the federal government, and there are no restrictions on land disposal of the waste.[10] Click here for more on the key differences between the proposed rules.

The proposal means the EPA will not necessarily declare coal ash a hazardous waste as desired by environmental groups, and the waste material could continue to be reused in various ways, EPA officials said. The final decision on which proposal the EPA and choose is to happen in July 2010,[11] but has been delayed.

The EPA decided not to choose a single option amid pressure from industry and environmental groups. The federal agency said both proposals for the first time would place "national rules on the disposal and management of the waste material from coal-fired power plants." Yet the EPA's plan leaves open the question of whether to phase out wet storage impoundments in favor of landfills, with the dueling proposals differing on the issue, according to an EPA press briefing.[12]

On May 10, 2010 the Illinois-based Prairie Rivers Network released a press memo criticizing the EPA's decision stating:

"The agency presented two options with vastly differing approaches to handling the 4.4 million tons of coal ash that is generated each year in Illinois. Recent USEPA reports indicate that coal waste leaches hazardous pollution in much greater quantities than had been recognized previously, contributing to over 100 documented contamination sites nationwide, several of which are in Illinois."
"But another big concern for Illinois is the giant loophole left in the rules that will allow the coal industry to dump toxic coal ash in under-regulated and unprotected mines."[13]

Public Employees for Environmental Responsibility on Coal Ash Industry-EPA Interference

On January 27, 2010, Public Employees for Environmental Responsibility (PEER) released a report that indicated the coal ash industry, with direct access to the EPA, manipulated reports and publications about the dangers of coal combustion waste. The group stated that the Environmental Protection Agency allowed the multi-billon dollar coal ash industry to have access to the EPA during the Bush administration years as well as under President Obama. The result has been a watering-down of crucial reports on human and environmental health related to coal waste. Documents obtained by PEER indicate that industry had access to a variety of EPA coal ash reports over the years and were successful in manipulating the information presented to the public about its negative effects.

The EPA reports were altered in several ways. References indicating the “high-risk” potential of coal combustion waste were deleted from PowerPoint presentations. Cautionary language about coal waste uses in agricultural practices was altered in order to remove negative connotations about the practice. And in 2007 the coal ash industry inserted language in an EPA report to Congress about how “industry and EPA [need to] work together” in order to block or water-down “state regulations [that] are hindering progress” in the use of coal ash waste.[14]

Environmental Groups to Sue EPA over Coal Ash

It was reported in January 2012 that a coalition of environmental groups will sue the EPA to speed the release of new environmental safeguards for the country's power plants' coal ash dumps.[15] The groups involved in the letter of intent to sue were listed as: Appalachian Voices, Chesapeake Climate Action Network, Environmental Integrity Project, French Broad Riverkeeper, Kentuckians for the Commonwealth, Moapa Band of Pauites, Montana Environmental Information Center, Physicians for Social Responsibility, Prairie Rivers Network, Sierra Club and Southern Alliance for Clean Energy. The groups are suing for what they call the EPA's "failure to perform nondiscretionary duties under the Resource Conservation and Recovery Act (RCRA)". The groups claim the EPA failed to fulfill its duty under RCRA section 2002(b) to review and revise regulation that have been:

  • inadequate to address the widespread risks posed by the unsafe disposal of coal ash (40 C.F.R. § 261.4(d) and 40 C.F.R. Part 257);
  • inadequate to determine the toxicity of certain solid wastes because they establish a test that does not accurately measure the leaching properties of many waste streams (40 C.F.R. § 261.24); and
  • insufficient to establish guidelines to protect groundwater and surface water and define prohibited ―open dumps‖ under RCRA (40 C.F.R. §§ 257.3-3 and 257.3- 4).[16]

Greenhouse gas issues (subsection)

For greenhouse gas regulations, see also EPA greenhouse gas issues.

Other coal regulations

New EPA regulations for coal plants in 2010 include the proposed Clean Air Transport Rule, the proposed Coal Combustion Residuals rule, the proposed Tailoring Rule (covering greenhouse gas emissions), the Ozone NAAQS (National Ambient Air Quality Standards), the forthcoming National Emission Standard for Hazardous Air Pollutants (NESHAPs), and cooling tower water regulations under section 316(b) of the Clean Water Act. [17][18][19]

2010 OMB Report: EPA benefits exceed costs

In a 2010 analysis of rules passed in the prior decade, the non-partisan Office of Management and Budget calculated benefits-to-cost ratios across various government agencies. The EPA came out on top with the highest ratios, with benefits from its regulations exceeding costs by an average of more than 10 to 1.

Related SourceWatch articles


  1. Shaila Dewan, "Hundreds of Coal Ash Dumps Lack Regulation," New York Times, January 7, 2009.
  2. 2.0 2.1 J. David Brittingham, "United States: Coal Ash Regulations: EPA Speaks--Sort of..." Dinsmore and Schohl, May 10, 2010.
  3. Sue Sturgis, "Toxic Influence: Coal ash-tainted money funds senators holding TVA disaster hearing," Institute for Southern Studies, January 7, 2009.
  4. Sue Sturgis, "Congressional coal ash defenders ignore damages back home" facing South, January 25, 2010.
  5. "EPA representative: Coal ash could be regulated," Associated Press, May 6, 2009.
  6. Statement from EPA on Coal Ash, EPA, December 17, 2009.
  7. Ash Sunstein AshSunstein.com, accesses March 16, 2010.
  8. "Inspector General to Probe EPA Marketing of Coal Ash", Public Employees for Environmental Responsibility, November 4, 2009.
  9. "Western govs say states best regulate coal ash" The Seattle Times, March 8, 2010.
  10. "Coal Combustion Residuals - Proposed Rule" EPA, accessed June 2010.
  11. Renee Schoof, "EPA postpones decision that would toughen coal ash rules "http://www.kansascity.com/2010/05/04/1924393/epa-postpones-decision-that-would.html#ixzz0n1E1PsMX" Kansas City Star, May 4, 2010.
  12. Mark Peters, "EPA Proposes Competing Approaches To Regulate Coal-Ash Waste" Wall Street Journal, May 4, 2010.
  13. "New Rules on Coal Ash Will Leave a Giant Loophole for Dumping Waste In Unprotected Mines" Prairie Rivers Network Press Release, May 10, 2010.
  14. "Coal Ash Industry Allowed to Edit EPA Report", Public Employees for Public Responsibility, accessed January 27, 2010.
  15. "Environmental Groups to sue EPA over coal ash" Spencer Hunt, The Columbus Dispatch, January 18, 2011.
  16. "Letter of Intent to Sue" Appalachian Voices et al, January 18, 2012.
  17. Josh Galperin, "Southeast Coal Retirements Mount in 2010," CleanEnergy.org, November 22, 2010
  18. David Roberts, "The two biggest (non-CO2) threats to coal power from the EPA," Grist, August 12, 2010
  19. David Roberts, "The other EPA rules that could threaten coal plants," Grist, August 13, 2010